Judge asks key questions to Mark Emmert in O'Bannon v. NCAA

OAKLAND, Calif. -- So much of a trial is theater. Before direct examinations, witnesses and lawyers log more rehearsal time than the cast of The Book of Mormon. Attorneys plot cross-examinations down to the minute to achieve that perfect gotcha moment at the ideal time. Only occasionally do questions truly reach the heart of a case.

NCAA president Mark Emmert faced several such questions on Thursday in O'Bannon v. NCAA, and they didn't come from a lawyer. They came from the judge.

Since this is a bench trial and not a jury trial, Judge Claudia Wilken alone must sift through the mountains of malarkey shoveled at her feet by two phalanxes of high-priced attorneys. She will decide who wins and who loses. (And then an appeals court will decide again.) As plaintiffs' attorney Bill Isaacson harangued Emmert during cross-examination late on Thursday morning, Wilken cut off the counselor and turned to Emmert.

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Isaacson had been asking Emmert about the NCAA's stated definition of the principle of amateurism, which, according to the NCAA Division I Manual, is this: "Student-athletes shall be amateurs in an intercollegiate sport, and their participation should be motivated primarily by education and by the physical, mental and social benefits to be derived. Student participation in intercollegiate athletics is an avocation, and student-athletes should be protected from exploitation by professional and commercial enterprises."

The NCAA's attorneys have argued that the interweaving of education and athletics -- the "physical, mental and social benefits to be derived," if you will -- represent the pro-competitive justification that excuses rules that prevent athletes from selling their name, image and likeness rights on the open market. Wilken's question sliced through the layers of meaning heaped upon those words by both sides. She wanted to know how the head of the NCAA felt about the concept. The judge wanted to know what Emmert thought the "student-athletes should be protected" section of the principle meant.

Emmert discussed the "commercial pressures" to use athletes in a variety of ways. "One has to make sure, in an amateur context, that it doesn't go to a place where the student-athletes are in fact being used as nothing more than shills for a product," Emmert said.

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Sorry again. Don't worry. We're putting Bessie out to pasture soon.

Wilken asked how the NCAA is protecting student-athletes from exploitation by commercial enterprises. Emmert again repeated that college athletes should not be pitchmen for various products.

Wow. Now Bessie is embedding YouTube clips of plaintiffs from the case. Sorry. Let's return to the courtroom drama.

After Emmert repeated his opinion for the judge, she asked a two-part question. "Maybe you don't want that, but do you consider that to be exploitation of them?" Wilken said. "Or is it just something you don't want to happen?"

Emmert's reply: "When this rule again has been discussed by the membership, the answer to that would be both." Wilken sought additional clarification, asking how receiving money for the use of their likenesses would harm the athletes. "The assumption is that by converting them into a professional athlete, they are no longer a student-athlete," Emmert said. "They are not part of the academic environment. They're not in a position to gain the advantages of being a student-athlete and being a student at that university. They are not there avocationally but vocationally."

Wilken asked one more follow-up question. "And that is what you consider to be exploitation of them?"

"Yes," Emmert replied. "In this language, yes."

How Emmert's association fares in this trial probably depends on how Wilken processes the answers to questions such as these, because they go straight to the guts of the case. She must decide if the NCAA and schools' justification for the rules trumps the players' right to participate in an open market for their names, images and likenesses. Emmert and the NCAA contend the rules protect the players from exploitation. The plaintiffs contend the rules actually encourage the exploitation of the players by schools, coaches and conference officials. Those images Bessie kept spitting out? Wilken saw similar ones in the courtroom on Thursday during Emmert's cross-examination.

After she adjourns the trial next week and retires to make her decision, Wilken will try to peel away all the layers of lawyerly pomp and drill down to the facts of the case. The answers to her questions will probably carry significant weight -- if only because she asked them.

On Thursday, Wilken wanted the president of the NCAA to tell her whom the rules protect. Whether he meant to or not, Emmert probably gave her the correct answer.

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